Legal Question in Elder Law in Pennsylvania

My Grandmother has a living trust on the house I own. I do not reside with her. She has recently invited my brother to live with her. He is a drug addict and has been financially abusing her for years (to the tune of roughly $1000 per month). Unfortunately protective services has been unable to act because she denies the abuse. At her advanced age and with her rapidly declining health, I believe a nursing home or worse is in the very near future. Because of the ongoing conflict within the family over his drug use and the abuse of our grandmother, I fear he may intentionally destroy the property while he is there. Is there anything I can do to protect my house? If she no longer resides in the house, how quickly can I have him removed?

Asked on 1/28/13, 7:47 pm

1 Answer from Attorneys

How is this your house? You state that your grandmother has a living trust. That means she does not own the house (nor do you) and that the trust owns it. If you own it then your grandmother cannot have conveyed the home to a living trust to begin with.

Who is the trustee of the trust? Is it your grandmother? Or someone else? If its your grandmother, then if she goes into a nursing home and can no longer handle her affairs, then the trustee of the trust will be in charge of handling the trust property, i.e., the house and anything else. The trustee can then evict your drug-addict brother.

If your grandmother is trustee for now, then there is not much that can be done unless you are prepared to prove that your grandmother is mentally incompetent to handle her own affairs and that the successor trustee needs to step in. Usually, this requires medical evidence - not just your grandmother's own assertions of being fine.

If your grandmother has a trust, does she have other estate planning documents like a power of attorney for finances and/or healthcare? The agent under the financial power of attorney would only handle things that are not in the trust, but it may give you a clue as to when it will take effect (unless it is effective immediately). It may also contain information about a preference for a guardian. If you are not the agent, then I would talk to the agent about pursuing a guardianship or having a successor trustee take over.

Again, this is not your house based on the facts that you related. I don't see how you would have any interest in the house unless your grandmother dies and you are to inherit upon her death. Rather, its the trustee or successor trustee that would have a duty to assume control of the assets if your grandmother no longer resides in the property.

If you are misspeaking and mean that you are the remainderman and that your grandmother only has a life estate, that is a slightly different question. The duty of a life tenant is to maintain the property. Depending on the document creating the life tenancy, there may or may not be a duty to actually live in the home. For example, a life tenant, where there is no duty to live there, could rent out the life tenancy to someone else. The only way for the life tenancy to be destroyed would be if your grandmother (or her agent under a power of attorney) conveyed the life estate to you. In such case, the remainderman would own 100% of the property. Also, if the life tenant is not maintaining the property (like allowing it to be damaged, not paying taxes, etc.), then the remainderman can often bring an action against the life tenant for waste.

If you are the remainderman, my question about a financial power of attorney would be valid. is there one? Who is the agent? Does the agent have the ability to act? Failing that, can there be a guardianship (again - you need medical evidence of mental incompetency to manage affairs) such that the guardian could take over, get drug-addict brother evicted and put grandmother in a nursing home? The guardian then could convey the property to you if that would be prudent.

You have a complicated case and I suggest that you see an attorney, probably an elder care attorney, to review the documents which created this "trust" of which you speak and any other documents which you may have for your grandmother. You need to find out first what you really have (either trust or life tenancy) and you need to find options to deal with grandmother. After those are resolved, then you can focus on which way you need to go to get your brother tossed out.

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Answered on 1/28/13, 9:08 pm

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